Corps of Engineers, Dept. of the Army, DoD §322

1 405 Corps of Engineers, dept . of the army , DoD the review of applications for Depart-ment of the army (DA) permits to au-thorize the construction of a dike or dam in a navigable water of the United States pursuant to section 9 of the Riv-ers and Harbors Act of 1899 (33 401). See 33 CFR (a). Dams and dikes in navigable waters of the United States also require DA permits under section 404 of the Clean Water Act, as amended (33 1344). Applicants for DA permits under this part should also refer to 33 CFR part 323 to satisfy the requirements of section 404. Definitions. For the purpose of this regulation, the following terms are defined: (a) The term navigable waters of the United States means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign com-merce.

2 See 33 CFR part 329 for a more complete definition of this term. (b) The term dike or dam means, for the purposes of section 9, any impound-ment structure that completely spans a navigable water of the United States and that may obstruct interstate wa-terborne commerce. The term does not include a weir. Weirs are regulated pur-suant to section 10 of the Rivers and Harbors Act of 1899. (See 33 CFR part 322.) Special policies and proce-dures. The following additional special poli-cies and procedures shall be applicable to the evaluation of permit applica-tions under this regulation: (a) The Assistant Secretary of the army (Civil Works) will decide whether DA authorization for a dam or dike in an interstate navigable water of the United States will be issued, since this authority has not been delegated to the Chief of Engineers. The conditions to be imposed in any instrument of au-thorization will be recommended by the district engineer when forwarding the report to the Assistant Secretary of the army (Civil Works), through the Chief of Engineers.

3 (b) District engineers are authorized to decide whether DA authorization for a dam or dike in an intrastate navi-gable water of the United States will be issued (see 33 CFR ). (c) Processing a DA application under section 9 will not be completed until the approval of the United States Con-gress has been obtained if the navi-gable water of the United States is an interstate waterbody, or until the ap-proval of the appropriate state legisla-ture has been obtained if the navigable water of the United States is an intra-state waterbody ( , the navigable portion of the navigable water of the United States is solely within the boundaries of one state). The district engineer , upon receipt of such an appli-cation, will notify the applicant that the consent of Congress or the state legislature must be obtained before a permit can be issued. PART 322 PERMITS FOR STRUC-TURES OR WORK IN OR AFFECT-ING NAVIGABLE WATERS OF THE UNITED STATES Sec.

4 General. Definitions. Activities requiring permits. Activities not requiring permits. Special policies. AUTHORITY: 33 403. SOURCE: 51 FR 41228, Nov. 13, 1986, unless otherwise noted. General. This regulation prescribes, in addi-tion to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for Depart-ment of the army (DA) permits to au-thorize certain structures or work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 403) (hereinafter referred to as section 10). See 33 CFR (b). Certain structures or work in or affecting navi-gable waters of the United States are also regulated under other authorities of the DA.

5 These include discharges of dredged or fill material into waters of VerDate Mar<15>2010 10:48 Aug 10, 2011 Jkt 223132 PO 00000 Frm 00415 Fmt 8010 Sfmt 8010 Y:\SGML\ 223132wreier-aviles on DSKDVH8Z91 PROD with CFR406 33 CFR Ch. II (7 1 11 Edition) the United States, including the terri-torial seas, pursuant to section 404 of the Clean Water Act (33 1344; see 33 CFR part 323) and the transportation of dredged material by vessel for pur-poses of dumping in ocean waters, in-cluding the territorial seas, pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 1413; see 33 CFR part 324). A DA permit will also be re-quired under these additional authori-ties if they are applicable to structures or work in or affecting navigable waters of the United States. Applicants for DA permits under this part should refer to the other cited authorities and implementing regulations for these ad-ditional permit requirements to deter-mine whether they also are applicable to their proposed activities.

6 Definitions. For the purpose of this regulation, the following terms are defined: (a) The term navigable waters of the United States and all other terms relat-ing to the geographic scope of jurisdic-tion are defined at 33 CFR part 329. Generally, they are those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign com-merce. (b) The term structure shall include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, revet-ment, riprap, jetty, artificial island, artificial reef, permanent mooring structure, power transmission line, permanently moored floating vessel, piling, aid to navigation, or any other obstacle or obstruction.

7 (c) The term work shall include, with-out limitation, any dredging or dis-posal of dredged material, excavation, filling, or other modification of a navi-gable water of the United States. (d) The term letter of permission means a type of individual permit issued in accordance with the abbre-viated procedures of 33 CFR (e). (e) The term individual permit means a DA authorization that is issued fol-lowing a case-by-case evaluation of a specific structure or work in accord-ance with the procedures of this regu-lation and 33 CFR part 325, and a deter-mination that the proposed structure or work is in the public interest pursu-ant to 33 CFR part 320. (f) The term general permit means a DA authorization that is issued on a nationwide or regional basis for a cat-egory or categories of activities when: (1) Those activities are substantially similar in nature and cause only mini-mal individual and cumulative envi-ronmental impacts; or (2) The general permit would result in avoiding unnecessary duplication of the regulatory control exercised by an-other Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumula-tively minimal.

8 (See 33 CFR (e) and 33 CFR part 330.) (g) The term artificial reef means a structure which is constructed or placed in the navigable waters of the United States or in the waters over-lying the outer continental shelf for the purpose of enhancing fishery re-sources and commercial and rec-reational fishing opportunities. The term does not include activities or structures such as wing deflectors, bank stabilization, grade stabilization structures, or low flow key ways, all of which may be useful to enhance fish-eries resources. Activities requiring permits. (a) General. DA permits are required under section 10 for structures and/or work in or affecting navigable waters of the United States except as other-wise provided in below. Certain activities specified in 33 CFR part 330 are permitted by that regulation ( na-tionwide general permits ).

9 Other ac-tivities may be authorized by district or division engineers on a regional basis ( regional general permits ). If an activity is not exempted by section of this part or authorized by a general permit, an individual section 10 permit will be required for the pro-posed activity. Structures or work are in navigable waters of the United States if they are within limits defined in 33 CFR part 329. Structures or work outside these limits are subject to the VerDate Mar<15>2010 10:48 Aug 10, 2011 Jkt 223132 PO 00000 Frm 00416 Fmt 8010 Sfmt 8010 Y:\SGML\ 223132wreier-aviles on DSKDVH8Z91 PROD with CFR407 Corps of Engineers, dept . of the army , DoD provisions of law cited in paragraph (a) of this section, if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity.

10 For purposes of a section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capac-ity of the waterbody. (b) Outer continental shelf. DA permits are required for the construction of ar-tificial islands, installations, and other devices on the seabed, to the seaward limit of the outer continental shelf, pursuant to section 4(f) of the Outer Continental Shelf Lands Act as amend-ed. (See 33 CFR (b).) (c) Activities of Federal agencies. (1) Except as specifically provided in this paragraph, activities of the type de-scribed in paragraphs (a) and (b) of this section, done by or on behalf of any Federal agency are subject to the au-thorization procedures of these regula-tions. Work or structures in or affect-ing navigable waters of the United States that are part of the civil works activities of the Corps of Engineers, unless covered by a nationwide or re-gional general permit issued pursuant to these regulations, are subject to the procedures of separate regulations.